By Christopher Lee
Washington Post Staff Writer
Monday, January 31, 2005; Page A19

There is a 17-word, one-sentence provision in federal law that appears to warn federal agencies away from hiring public relations firms -- the sort of arrangement that recently landed the Education Department in hot water with Congress.

"Appropriated funds may not be used to pay a publicity expert unless specifically appropriated for that purpose," states the provision in the U.S. Code.

Such language seemingly would have put the kibosh on the Education Department's $1 million-plus contract with the public relations firm Ketchum Inc. to promote President Bush's No Child Left Behind law, an effort roundly criticized by some in Congress as propaganda. After all, the Education Department is not like, say, the Defense Department, to which Congress grants millions of dollars each year specifically for military advertising and recruiting.

Alas, it is not that simple.

The statute, which dates to 1913, has been difficult to enforce, rarely applied and interpreted in such a way that many agency public relations efforts are considered acceptable.

To the extent that agencies have gotten into trouble for such efforts lately, it has been for running afoul of laws that prohibit the use of appropriated funds for "covert propaganda." That is, agencies or contractors cannot produce materials, including editorials or news stories, that are distributed so that they appear to have come from an independent third party, according to "Principles of Federal Appropriations Law." The four-volume reference, known as the "Red Book," is maintained by the Government Accountability Office and is a guide to areas of the law in which the comptroller general renders opinions.

"A critical element of the violation is concealment of the agency's role in sponsoring the material," the guidebook notes.

So it was that in May the GAO said the Centers for Medicare & Medicaid Services violated "publicity and propaganda" prohibitions by producing a "video news release" regarding changes to Medicare benefits. The video package, complete with lead-in scripts, did not identify CMS as the source, resembled a television news story and was used by some TV stations as if it were independently reported news.

"In a modest but meaningful way, the publicity or propaganda restriction helps to mark the boundary between an agency making information available to the public and agencies creating news reports unbeknownst to the receiving audience," GAO General Counsel Anthony H. Gamboa wrote in his May 19 report.

Violations can bring administrative sanctions such as letters of reprimand, but criminal charges are rare or unheard of, according to GAO officials. The GAO has no enforcement power; Congress or the administration imposes sanctions.

Now the GAO is looking into whether the Education Department broke any laws in its contracts with Ketchum, the PR firm that was separately contracted to produce the CMS video package. Among other things, the department's arrangement with Ketchum involved the production of a video news release on No Child Left Behind and $240,000 in payments to Armstrong Williams, a black conservative commentator, to promote the law in radio and television appearances. Williams did not disclose the contract.

Critics of the deal in Congress assert that it violated the ban on covert propaganda. None has cited the prohibition on hiring "publicity experts," however.

The intent of that provision, according to the GAO manual, is to prevent the use of publicity experts to bring acclaim to an agency activity or to officials, rather than to advance the real work of the agency. The law acknowledges, however, that "the effective implementation of the duties of some agencies requires the acquisition and dissemination of information."

The GAO cites two cases to illustrate how the prohibition works. In the 1970s, the Federal Energy Administration launched a media campaign to tout the need for energy conservation. That was all right, the GAO found, because the agency had "statutory authority to disseminate information and to promote energy conservation." But the Chemical Warfare Commission, a presidential advisory committee, was deemed to have violated the statute in the 1980s by hiring a public affairs consultant. The GAO said the commission's duties were "solely advisory," and "it had no authority to engage in promotional activities or to maintain a public affairs program."

Education Department officials, including former secretary Roderick R. Paige, have argued that the Ketchum contract was appropriate. They say the department has a duty to educate the public about No Child Left Behind, which aims to bring all children up to proficiency in reading and math by 2014. The department's own public affairs staff was not large enough, one official said, "so we decided to bring in some outside help and get some experts in social marketing in on it."

The official, interviewed earlier this month, did not want his name used because the department wanted then-Secretary Paige to be the public face of its response to criticism on the issue. The official said the agency paid Ketchum with general funds, not specially appropriated dollars. And he said such arrangements are common.

"In a lot of these departments, in order to be able to do things well and inform the public well, at times you need some outside expertise," the official said.

Indeed, over the past four years, agencies have spent at least $254 million on 286 contracts with major PR agencies, according to a recent analysis of federal contracting data by the Democratic staff of the House Committee on Government Reform. Agencies spent $88 million on such contracts in 2004, up from $39 million in 2000, the last year of the Clinton administration.

Not all federal agencies that hire public relations firms pay them in the same way. The National Park Service, for example, typically hires such help with private money raised by outside groups, said David Barna, chief of communications for the park service.

"When we reopened the Statue of Liberty, the Statue of Liberty-Ellis Island Foundation paid for a PR firm that was there to check the media in," Barna said. "They were overwhelmed. You've got one [agency] public affairs guy up there and every camera in the world was there. But I . . . made sure that they were not using park dollars or appropriated dollars for that event."

Barna tells his staff that the publicity expert provision prohibits using tax dollars for outside PR work. It is not a legal opinion, he said, just a belief acquired over 29 years of federal service. "If there's a gray area, we'd rather just live by the 'just say no' kind of rule," he said.

The outcry over the Education Department contract -- coming on the heels of the CMS flap and a similar violation involving prepackaged news reports at the Office of National Drug Control Policy -- has stoked interest in Congress for reviewing all federal agencies' PR efforts. Last week, The Washington Post reported that syndicated columnist Maggie Gallagher was touting Bush's "healthy marriage" initiative while working on the program under a $21,500 contract with the Department of Health and Human Services.

Bush said last week that agencies should no longer hire commentators or journalists to promote the administration's policies: "Our agenda ought to be able to stand on its own two feet."

That was not enough for his critics. On Friday, 21 House Democrats sent a letter to the president asking him to direct every agency to turn over to Congress all public relations and advertising contracts signed during his administration.

"Covert propaganda campaigns are unethical and illegal," they wrote. "Those disclosed to date mislead the American people about public policy and deceive the news media and press about the credibility of critiques of Administration policies. We very much hope the contracts revealed to this point are an aberration and not part of a pattern across federal agencies."